Cunningham v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER: The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 8/28/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GREGORY CUNNINGHAM,
Plaintiff,
vs.

Case No. 12-1234-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff
supplemental security income payments.

The matter has been

fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
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The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
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If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On April 15, 2011, administrative law judge (ALJ) James

Harty issued his decision (R. at 10-19).

Plaintiff alleges that

he has been disabled since August 31, 2007 (R. at 10).

At step

one, the ALJ found that plaintiff has not engaged in substantial
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gainful activity since plaintiff’s application date of October
29, 2008 (R. at 12).

At step two, the ALJ found that plaintiff

has the following severe impairments:

plantar fasciitis; lower

extremity neuropathy; bipolar disorder; mood disorder not
otherwise specified; anxiety disorder not otherwise specified;
generalized anxiety disorder; antisocial personality disorder;
and personality disorder not otherwise specified with antisocial
traits (R. at 12).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 12).

After determining plaintiff’s RFC (R. at 14), the

ALJ determined at step four that plaintiff is unable to perform
any past relevant work (R. at 18).

At step five, the ALJ

determined that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 18-19).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 19).
III.

Did the ALJ err in the relative weight given to various

medical opinions?
On June 2, 2009, Dr. Stern prepared a state agency mental
RFC assessment opining that plaintiff had moderate limitations
in the ability to understand, remember and carry out detailed
instructions, interact appropriately with the general public,
and get along with coworkers or peers without distracting them
or exhibiting behavioral extremes.
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Dr. Stern indicated that

plaintiff would be best suited to work that only requires that
he remember and carry out simple instructions, and that he not
require frequent interactions with the general public or
coworkers (R. at 311-313).

On January 16, 2010, Dr. Schulman

affirmed this assessment (R. at 395).
A second state agency mental RFC assessment was prepared by
Dr. Shwetz on March 9, 2010.

Dr. Shwetz found plaintiff not

only moderately limited in the above categories identified by
Dr. Stern, but also found her moderately limited in these
additional categories:
The ability to maintain attention and
concentration for extended periods.
The ability to perform activities within a
schedule, maintain regular attendance, and
be punctual within customary tolerances.
The ability to work in coordination with or
proximity to others without being distracted
by them.
The ability to complete a normal workday and
workweek without interruptions from
psychologically based symptoms and to
perform at a consistent pace without an
unreasonable number and length of rest
periods.
The ability to accept instructions and
respond appropriately to criticism from
supervisors.
The ability to maintain socially appropriate
behavior and to adhere to basic standards of
neatness and cleanliness.

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The ability to respond appropriately to
changes in the work setting.
The ability to set realistic goals or make
plans independently of others.
(R. at 418-419).

Dr. Shwetz indicated that plaintiff would be

best working at simple routine tasks in a structured quiet
setting with clear work performance expectations and little
distraction.

She further stated that plaintiff would have

difficulty being reliably consistent in pace and persistence.
Plaintiff would need to work with a patient and nonthreatening
supervisor who can give timely and constructive feedback, and
would need to work with minimal changes and decision-making (R.
at 420).

Dr. Shwetz provided a very detailed explanation for

making findings which were more restrictive than those of Dr.
Stern (R. at 417).

These two opinions provide the only detailed

assessments of plaintiff’s mental limitations.
The ALJ found that the opinions of Dr. Stern/Dr. Schulman
were “consistent with the overall record and are given some
weight.”

The ALJ found that the opinion of Dr. Shwetz is “not

consistent with the overall record and is given little weight”
(R. at 17).

In his RFC findings, the ALJ included the following

mental limitations:
He is limited to simple, routine, repetitive
tasks, not performed in a fast-paced
productions environment, involving only
simple work-related decisions and in general
few work place changes. He is limited to
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occasional interaction with coworkers,
supervisors, and the general public.
(R. at 14).

Thus, the ALJ’s RFC findings incorporate all of the

limitations contained in the assessment by Dr. Stern, but only
incorporate a few of the additional limitations found by Dr.
Shwetz.
At the hearing, the vocational expert (VE) found that
plaintiff, given the ALJ’s RFC findings, could perform other
work in the national economy (R. at 51-52).

However, the VE

further testified that a person with the limitations contained
in the assessment by Dr. Shwetz would preclude competitive
employment (R. at 52-54).
An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

The

ALJ “will” evaluate every medical opinion that they receive, and
will consider a number of factors in deciding the weight to give
to any medical opinion.

Hamlin, 365 F.3d at 1215; 20 C.F.R.

§§ 404.1527(c), 416.927(c).
As noted above, the ALJ found that the assessment by Dr.
Stern was consistent with the overall record, and was given some
weight, while the assessment by Dr. Shwetz was not consistent
with the overall record and was given little weight.

The court

finds that such a summary conclusion that the assessment was or
was not consistent with the overall record is beyond meaningful

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judicial review.

In the absence of ALJ findings supported by

specific weighing of the evidence, the court cannot assess
whether relevant evidence supports the ALJ’s conclusion that an
assessment was or was not consistent with the overall record.
See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
Boilerplate, conclusory statements must be linked to evidence in
the record.

See Hardman v. Barnhart, 362 F.3d 676, 679 (10th

Cir. 2004).

Conclusory statements do not provide justification

for rejecting a medical source opinion; the Commissioner must
give specific, legitimate reasons for rejecting the medical
source opinion.
1988).

Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir.

Other than making conclusory statements, the ALJ

provided no explanation for why one assessment was consistent
with the evidence, while the other assessment was not consistent
with the evidence.

Nothing in the ALJ’s decision explains the

basis for these conclusory statements by the ALJ.

Therefore,

this case shall be remanded in order for the ALJ to explain why
greater weight was given to the assessment by Dr. Stern, and
little weight was given to the assessment by Dr. Shwetz.
As noted above, and by defendant in her brief (Doc. 19 at
17), it appears that the ALJ included a few, but not many of the
additional limitations opined by Dr. Shwetz.

However, an ALJ

should explain why he rejected some limitations contained in an
assessment, but appeared to adopt other limitations contained in
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the assessment.
2007).

Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.

The ALJ offered no explanation for appearing to adopt

some of the limitations set out by Dr. Shwetz, but rejecting
others.
IV.

On remand, the ALJ must comply with this requirement.

Did the ALJ err in his credibility analysis?
Plaintiff also asserts error by the ALJ in his credibility

findings.

The court will not address this issue because it may

be affected by the ALJ’s resolution of the case on remand after
providing a legally sufficient explanation for the weight
accorded to the medical source opinions, particularly those of
Dr. Stern and Dr. Shwetz.

See Robinson v. Barnhart, 366 F.3d

1078, 1085 (10th Cir. 2004).
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 28th day of August 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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